r v. STUART O, 2023 QCCQ 10587

R. c. O'Driscoll 2023 QCCQ 10587 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL Criminal Division No: 505-01-160649-196 DATE: December 14, 2023 ______________________________________________________________________ BY THE HONOURABLE JUSTICE MARC-ANTOINE CARETTE ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v.

STUART O’DRISCOLL Accused JUDGMENT ______________________________________________________________________ CONTEXT [ 1 ] Mister O’Driscoll registered a guilty plea to charges of possession and accessing child pornography. The infringement period starts in 2012, and ends in 2019. [ 2 ] To support the guilty plea, the parties have filed a joint statement of facts as well as a categorization report of the different files seized. Essentially, the police officers obtained a search warrant and seized approximately 9,913 files of images constituting child pornography.

Most of the files show images of young girls between the age of 0 to 12 years old, and the characteristics of these files are summarized in the categorization report. [ 3 ] The accused filed a notice to raise a constitutional question, to declare sections 163.1(4)

a) and 163.1(4.1)

a) of the Criminal Code unconstitutional. Since the hearing of this notice, the Quebec Court of Appeal rendered a decision in Procureur Général du Québec c. Terroux [1] , invalidating minimum sentences for possession and accessing child pornography. The Court therefore summoned the parties again to hear their respective arguments on the possibility of imposing a conditional sentence. POSITION OF THE PARTIES [ 4 ] The prosecutor is of the opinion that a sentence of 18 months of imprisonment accompanied by a 3 years’ probation is appropriate in this case.

Both the Attorney General of Quebec and the D.P.C.P. are of the opinion that the criteria for denunciation and deterrence are so imperious that a community prison sentence should not be imposed. [ 5 ] As for the accused, his initial proposal is a sentence of 90 days to be served intermittently. Alternatively, if the Court were to impose a more severe sentence, it is of his opinion that this sentence be served in the community.

In support of his argument, he asserts that due to the numerous mitigating factors as well as a causal link between the commission of the offenses and his mental health, a community prison sentence is consistent with the objectives of the Criminal Code . ANALYTICAL FRAMEWORK [ 6 ] The main objective for imposing a sentence is to protect society and contribute to the prevention of crime, respect for the law and maintaining a just, peaceful and safe society. The imposition of just sanctions may aim for one or more of the objectives mentioned in

section 718 of the Criminal Code , namely denunciation, individual and collective deterrence, isolation of the offender, social reintegration, reparation and taking responsibility. [ 7 ] The cardinal principle of sentencing requires that it be proportional to the seriousness of the offense as well as the degree of responsibility of the offender.

This delicate task requires that the severity of the punishment depends not only on the seriousness of the consequences of the crime, but also on the moral culpability of the accused. [ 8 ] The principle of individualization of punishment requires that the sentence imposed takes into account the particular situation of the accused. The principle of harmonization of penalties requires taking into account the penalties generally imposed for similar crimes, committed in similar circumstances. [ 9 ] The Court must also exercise moderation in imposing a sentence.

In this sense, the Criminal Code provides that the Court must impose the least custodial sentence.

[ 10 ] These principles and objectives are the subject of the following comments by Justice Lamer in R. v. M.(C.A.) [2] , when he defines the bases for the imposition of a sentence: It has been recognized by this Court that retribution is an accepted, and indeed important, principle of sentencing in our criminal law. (…) However, the meaning of retribution is deserving of some clarification.

The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with "vengeance" in common parlance. (…) vengeance has no role to play in a civilized system of sentencing. (…) Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more . [ 11 ] In the Friesen [3] decision, the Supreme Court of Canada issues clear guidelines regarding sexual offenses committed against children and adolescents. [ 12 ] The message from the Supreme Court is clear: When it comes to crimes against children, penalties must increase. [ 13 ] The Court reiterates that sexual abuse involves a serious attack on the integrity, dignity and private life of the child.

The sentence must therefore reflect the highly reprehensible nature and great harmfulness of sexual offenses. [ 14 ] She also underlines that the legislator's choice is to favor denunciation and deterrence for sexual crimes against children. This is intended to be a response to the reprehensible nature of these offenses and the serious harm they cause. [ 15 ] To this effect, it is clear that sexual violence can compromise the healthy development and personal fulfillment of the child.

Even an isolated gesture can forever alter the course of life. [ 16 ] In short, the sentence must reflect 1: the reprehensible nature inherent in these offenses; 2: the harm that these offenses can cause to children and 3: the real harm that these offenses actually caused to children. [ 17 ] More specifically, as for sexual crimes against children, the Court of Appeal of Ontario in R. v. Inksetter [4] reminds that child pornography is a pervasive social problem that affects the global community and its children. Making reference to R. v.

Friesen [5] , the online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the files or images. Those harms real and apprehended must be at the forefront when sentencing for sexual offences involving children. ANALYSIS Proof presented at the hearing Mister O’Driscoll’s testimony [ 18 ] From the outset, the Tribunal is of the opinion that Mr. O’Driscoll provided a credible and reliable testimony. [ 19 ] He is 48 years old and has no criminal record.

He grew up with his single mother and suffered many physical and emotional injuries from his older brother. He experienced several difficulties at school having little concentration and a language problem. To this day, he maintains important contacts with his mother as well as his older sister. He only has one close friend who he sees on a regular basis. [ 20 ] Mr. O’Driscoll works in the printing office for Concordia University since 1997. It is clear from his testimony that he finds enormous value in this work.

The possibility of him losing this job due to a prison sentence causes him enormous stress. [ 21 ] Following his arrest, he felt ashamed. Despite everything, he continues to have the support of his family. [ 22 ] The accused began psycho-sexual treatment with Doctor Marc Ravart on October 18, 2019. The follow-up is going well and allowed Mr. O'Driscoll to recognize his inadequate behavior, to understand the illegality of his gestures. At the suggestion of Dr. Ravart, the accused underwent psychological testing and was diagnosed with autism spectrum disorder (ASD).

This diagnosis now allows him to better understand the social difficulties he faces. He is ready to continue his treatments with Doctor Ravart as long as necessary. [ 23 ] In view of the offenses, Mr. O'Driscoll testified with great sincerity regarding remorse and regret for his actions, now understanding that many children have suffered as a result of crimes related to child pornography. The presentence report [ 24 ] A presentence report has been prepared for the Court, by the probation agent Jessy Morris. Mr.

Morris confirms, after a discussion with Doctor Ravart, that the accused is undergoing psycho-sexual treatment. Dr Ravart would not fear a return to viewing illegal content. [ 25 ] The probation officer confirms that Mr. O’Driscoll attaches great importance to his work and defines himself by saying that he is comfortable with his routine and does not deviate from it. The impact of the upcoming sentence is likely to be a hard blow. [ 26 ] According to him, the accused being alone in front of his computer, he did not think he was harming anyone.

The fact of being behind a screen implied a distance which, at that moment, legitimized his gesture and maintained his belief of not causing any victims.

Therapy allowed him to understand all the consequences of his actions. During therapy, the defendant was diagnosed with ASD, which allowed him to understand his feelings of difference and explain his social difficulties. The probation officer indicates that the loss of his job by which he defines himself, given his psychological disposition, are destabilizing changes to his environment that are possibly difficult to tame. The officer also sensed significant distress from the accused, which remains worrying. [ 27 ] The accused provided good cooperation in gathering information for this report.

As for taking action, this seems to him to be dependent on an error of thought on the part of the accused who believed that his actions did no harm and that he was relieved of guilt by the distance imposed by the computer with the victims. His attraction to young girls is recent and exclusive to internet content. According to the agent, the accused appears to have accepted his ASD diagnosis, which seems to have answered several of his questions about his behavior and way of being. His regrets seemed sincere. Although his entourage is limited, the accused benefits from positive support.

As for the risk of recurrence, it is reduced and depends on maintaining his psycho-sexual follow-up. Sexological evaluation [ 28 ] Mister Steve Titley proceeded with a sexological evaluation. His mandate is to issue clinical opinions in relation to the entire problem of sexual offending, to assess the risk of recidivism and to present clinical conclusions. As for the act itself, Mr.

Titley indicates that it seems that the accessibility, the virtual nature, the absence of empathy and consideration for minors, in addition to the presence of deviant sexual interests, are certainly contributing factors to the commission of sexual offences. As for the questionnaire Internet Sex Screening Test, the results obtained would indicate that the accused presents a low-moderate risk of sexual conduct on the internet. As for the questionnaire Children and Sexual Activities, the answers given by the accused suggest that he does not present the cognitive profile favorizing this type of behavior in reality.

As for the clinical understanding of sexual offenses, Mr. Titley summarizes in his report the immediate remote factors and main triggers associated with his offenses. As for the risk of recidivism assessed at the end of a static study, Mr. Titley mentions that it is approximately 4 to 6% for the 5 and a half years following the arrest.

Since the arrest took place more than 4 years ago, and the accused is currently receiving treatment, the Court qualifies the risk of recidivism as low in this case. [ 29 ] A letter from Doctor Ravart was also submitted in which he is of the opinion that the risk of recurrence is low following continuation of treatment. Guidelines on sentencing [ 30 ] The Régnier [6] decision remains the leading decision in Quebec regarding the possession and distribution of child pornography. In this judgment, the Court of Appeal indicates that the old sentencing range of 6 months to 2 years is obsolete.

Due to the numerous legislative amendments related to the provisions related to child pornography over several years reveal a clear desire of Parliament to grant increased protection to children and to impose severe penalties. In this case, Mr. Régnier pleaded guilty to the crimes of distribution and possession of more than 71,000 files and 2,400 videos corresponding to child pornography. The offense period is 16 years. The Court of Appeal intervened and substituted a global sentence of 36 months despite the accused's rehabilitation efforts.

This being said, it is clear from this judgment that the crime of distribution is of greater subjective seriousness. [ 31 ] In all events, the principles emerging from the Friesen decision are clear: In matters of sexual violence against children, penalties must increase. [ 32 ] As far as conditional sentence for these types of crimes, this is not the norm. Incarceration will generally be necessary to achieve a proportionate sentence in cases involving a child sexual offense.

Because of the gravity of child sexual offenses and the paramountcy of denunciation and deterrence, a non carceral sentence tense to be the exception rather than the rule. This being said, sentencing is an individualised process, and you will never find two cases exactly alike. Furthermore, as stated in R. v. Proulx [7] , the Supreme Court clearly indicated that there is no presumption that a conditional sentence does not apply for any crime. [ 33 ] Although sentencing ranges are interesting tools, the fundamental principle remains the individualization of the sentence.

Objective gravity [ 34 ] The objective seriousness of the offenses of possession and accessing to child pornography is a maximum sentence of 10 years. Subjective gravity [ 35 ] As for subjective seriousness, it is necessary to examine the circumstances of the offenses by individualizing the moral aspect, the aggravating and mitigating factors making it possible to calibrate this subjective seriousness. The Court considers the following aggravating factors: • These are crimes committed against people under the age of 18.

Moreso, it involves files of children from age 0 to 12 years old; • The long period of the offense (2012 to 2019 for possession and 2015 to 2019 for accessing); • The number of files, which is 9,900. [ 36 ] The Court considers the following mitigating factors: • The guilty plea;

• The absence of a criminal record; • The presence of sincere regrets and remorse; • The low risk of recidivism; • Psycho-sexual treatment since October 2019. [ 37 ] As for other relevant factors, the Court considers: • The accused is an asset for the society; • Compliance with the conditions of release since his arrest; • He provided good collaboration in the preparation of reports and with the police officers. [ 38 ] As for those relevant factors, the Court agrees with the accused that the conditions imposed upon his release, were hard on him.

The fact of not being allowed to use internet during the pandemic did not allow him to maintain social connections. [ 39 ] The Court understands that Mr. O’Driscoll was diagnosed with ASD, which is a lifelong neurodevelopmental condition. This being said, to reduce his moral responsibility, the accused must be able to demonstrate by preponderance of evidence that there was a causal link between his condition and the commission of the offense. Only in these circumstances will the Court tend to favor the principle of rehabilitation rather than those of denunciation and deterrence. In R. v.

D.(D.) [8] , the Ontario Superior Court states: The central issue is whether there is a casual link between the mental illness and criminal behavior or whether the mental illness merely provides an explanation for the accused behavior. Establishing a casual link will make mental illness a stronger mitigating factor at the sentencing than if the accused mental health only serves to explain the accused offending behavior. [ 40 ] The Court is aware that this disorder could have caused difficulties in his interpersonal interactions. The sexologist Mr.

Titley, however, mentions on page 12 of 14 of his report that this is a remote factor associated with committing the criminal act. This is not an immediate or primary trigger.

In the circumstances, although the Court treats him as a relevant factor in sentencing, the fact remains that his degree of moral responsibility is high in the circumstances. [ 41 ] What is the appropriate sentence? [ 42 ] In light of the different circumstances, the Court agrees with the parties that a provincial term is appropriate. [ 43 ] Thus, the Court must seriously consider the possibility of the sentence being served in the community, having regard to the principles emerging from the Proulx decision.

It is important to recall certain relevant principles set out by the Supreme Court. [ 44 ] There is no presumption of applicability or inapplicability of conditional sentence to certain given offenses (including the offense of sexual assault prosecuted by indictment, which is ‘’being no longer excluded from the scope of conditional sentence’’). [ 45 ] Conditional sentence can have an appreciable denunciation and deterrent effect.

When it is possible to combine punitive and corrective objectives, conditional sentence will likely be a more appropriate sanction than incarceration. [ 46 ] When objectives such as denunciation and deterrence are particularly urgent, incarceration will generally be the preferable sanction, despite the fact that a conditional sentence could achieve corrective objectives. [ 47 ] Incarceration usually produces a greater denunciation effect than conditional sentence, a measure generally more lenient than a fixed prison sentence of equivalent length.

However, depending on the nature of the conditions imposed in the conditional sentence order, the duration of the order and the situation of the offender and the community in which he will serve his sentence, it is possible that the conditional sentence may have a sufficient effect of denunciation and deterrent, even in cases where the corrective objectives are less important. [ 48 ] Conditional sentence may be granted even in cases where there are aggravating circumstances linked to the commission of the offense or to the situation of the offender, although the presence of such circumstances increases the need for denunciation and of deterrence. [ 49 ] In view of the above, and due to the numerous mitigating factors, it is clear that a community prison sentence would achieve many more corrective objectives than a prison sentence. [ 50 ] This being said, the weight to be given in this case to the aggravating factors must be significant. 9,900 files showing abuse of children aged 0 to 12 must be denounced loud and clear.

These offenses were committed over a long period of time and only the arrest led to the cessation of the action. [ 51 ] Mr. O’Driscoll made numerous efforts of rehabilitation. The judicial proceedings lasted for 4 years, some delays of which were caused by the illness of a judge. Throughout this time, the accused respected each and every one of his release conditions. [ 52 ] He has also been in therapy for 4 years and now understands much better the harm and consequences caused by his behavior.

Real children were abused. [ 53 ] Specific deterrence is clearly achieved here. [ 54 ] Of all the mitigating and relevant factors, the Court is of the opinion that the accused has demonstrated a particularly

convincing demonstration of his rehabilitation within the meaning of the Zawahra [9] decision. [ 55 ] The accused is an asset for the society and has maintained the same routine for many years now. [ 56 ] A prison sentence would be counter-productive, both for maintaining his job and continuing his therapy. [ 57 ] The Court concludes that this is an exceptional case where a conditional sentence is appropriate. [ 58 ] It promotes denunciation and general deterrence while allowing compliance with other corrective objectives. [ 59 ] The Court will also impose community services.

This increases denunciation and deterrence while promoting repair of the harm caused to the community and awareness of his responsibility. THEREFOR, THE COURT : [ 60 ] CONDEMNS the accused to a conditional sentence of 18 months on each count, concurrent with each other, with the following conditions of: − Keeping the peace and having a good behavior; − Appear before the court when required to do so by the court; − Report to a supervisor − Remain in the province of Québec, unless written permission from the court or the supervisor; − Notify the court or the supervisor of any change of address.

For the first 12 months, you shall be at your residence at all times barring the following exceptions: − To attend a pre-scheduled appointment with his/her supervisor − To appear before the court as a witness or party to a dispute − To appear before the court if required to do so by the court in this case − To receive medical treatment for himself or a member of his immediate family − To purchase food or necessary goods or services for himself or a member of his immediate family for not more than 4 hours, once a week, that is, on Saturdays between 1:00 pm until 5:00 pm − To perform the community services imposed by this order in accordance with the terms set by your supervisor − To carry on legitimate gainful employment as approved in writing by your supervisor − To meet with any person (such as Dr.

Ravart) with the prior written authorization of your supervisor with regard to the nature, place, time and duration of the meeting − For any serious and/or urgent reason, with the prior written authorization of your supervisor.

For the last 6 months, you shall be at your residence, as a curfew, between 9:00 pm until 6:00 am with the exceptions of: − To perform the community services imposed by this order in accordance with the terms set by your supervisor − To carry on legitimate gainful employment as approved in writing by your supervisor − You will also have to answer all phone calls from the supervisor during that period of curfew and house arrest and take the necessary steps to be able to do so, you will have to maintain a ground telephone line and if you do not have a ground telephone line, we allow you 7 days to install a ground phone line − Not be subscribed to a service of transfer of calls − Facilitate access to your residence by the supervisor − To notify the supervisor of any change of phone number within 24 hours − Follow all the supervisor’s written instructions regarding the application of the conditional sentence of imprisonment − Follow all the supervisor’s written instructions concerning any therapy or continuation of your treatment with Dr.

Ravart − Perform 100 hours of community services within 12 months as of today [ 61 ] Afterwards, the Court ISSUES a probation order for a period of 3 years on the following conditions: − Keep the peace and be of good behavior;

− Appear before the court when required to do so by the court; − Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; − Report to a probation officer within 2 working days of the coming into force of the probation order and, afterwards, when required by the probation officer for a period of 2 years; Follow the probation officer instructions concerning any therapy for psycho-sexual therapy; − Perform an additional 50 hours of community services within a delay of 12 months; [ 62 ] PROHIBITS the offender, as of today, for a period of 10 years, according to section 161 (1) Cr.C , from.:

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority, towards persons under the age of 16 years;

c) having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate;

d) using internet or other digital networks for any recreational purposes, to communicate with minor to access any type of social media chatrooms or forums or to access any content that infringes any law; [ 63 ] ORDERS the offender to comply with sex offender information registration act, according to

section 490.012 Cr.c., for a period of 20 years; [ 64 ] ORDERS the offender to comply with the taking of bodily substances for forensic DNA analysis, according to

section 487.051(1) and

(2) Cr.C .; __________________________________ MARC-ANTOINE CARETTE, J.C.Q. Tiziana Daniele Crown prosecutor Ariane Roberge Attorney for the defense Marie Fraser-Michaud Attorney for the Quebec Prosecutor General Dates of hearing: 2 nd of May, 2023, 2 nd of October, 2023